Smith v. State, 2--674A132

• Decision Date: 18 March 1975
• Docket Number: No. 2--674A132,2--674A132
• Parties: Tommy SMITH and Michael Leavell, Appellants (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 276

324 N.E.2d 276

163 Ind.App. 425

Tommy SMITH and Michael Leavell, Appellants (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--674A132.

Court of Appeals of Indiana, First District.

March 18, 1975.

Rehearing Denied April 15, 1975.

Charles H. Scruggs, Kokomo, for appellant, Tommy Smith.

Stephen Johnson, Grant County Public Defender, Marion, for appellant, Michael Leavell.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendants-appellants Smith and Leavell appeal from convictions of armed robbery, raising the following issues for review:

(1) Whether the jury verdicts were supported by sufficient evidence.

(2) Whether the trial court erred in overruling defendants' motions for directed verdicts of acquittal.

(3) Whether the trial court erred in overruling defendant's motions to suppress various items of evidence.

(4) Whether the trial court abused its discretion by permitting a witness to testify that 'weapons' were found in a search of defendant-appellant Leavell's residence.

The evidence most favorable to the State reveals that at approximately 8:45 P.M. on May 29, 1973, a Hook's drug store in Marion was robbed of about $647.00 by three black males wearing hoods or ladies hose over their faces and levi jackets. The men entered through the back stock room and were armed with pistols, one of which was a long-barrelled hand gun. After confronting the pharmacist, one of the men forced an employee to empty the cash from the cash register into a paper sack. The men then departed. No one at the drug store could either identify the subjects or relate how they effected their getaway.

At approximately 9:00 P.M. on the same date, Officer Mast of the Marion Police Department was informed of the drug store robbery via police radio while he was on patrol. Thirty minutes later, Mast observed a 1965 green Lincoln automobile proceeding south on Nebraska Street. Mast followed the vehicle which, according to his testimony, appeared to be occupied by two blacks, a boy and a girl sitting beside each other. Mast then engaged his flashing red light in order to stop the car. However, the car turned onto an alley before stopping. Mast followed and observed two black men exit from the passenger side of the car and flee. A third black man, according to Mast, stood behind an open back door of the vehicle and pointed a gun at him. Thereupon, Mast assumed a prone position on the front seat of his patrol car and radioed for assistance. When Mast looked up, the subject had fled.

Shortly thereafter, Mast was joined by Officer Simpkins, also of the Marion Police Department, and the two examined the abandoned vehicle. Therein they discovered and confiscated a paper sack which bore the Hook's insignia, containing about $647.00. Mast remained with the vehicle until it could be removed, and Simpkins proceeded with the investigation.

Simpkins soon encountered a passerby, Kenneth Boyer, who related that he had seen three Negro subjects running down Nebraska Street and that one had run onto the front porch of a house located near 7th and Nebraska Streets, while another had run onto the back porch of the same house. Boyer stated that he did not know if the men had run from the alley, but rather testified that they could have come from anywhere. Another witness, Chet Parker, testified that he also saw Negro males run to the rear of 704 Nebraska Street, the premise in question.

At that time, Simpkins was joined by other police officers, and they focused their investigation upon the house at 704 Nebraska in which Leavell rented an apartment. A few minutes later, an officer Drook observed Smith crawling around the corner of the house and exclaimed 'Here's one of 'em.' Smith then ran across an adjacent yard, but was unable to thwart his capture.

At that time, Assistant Police Chief Whitton arrived at the scene and via a public address system ordered all persons to come out of the house. After a woman and small child had exited, tear gas was used to flush out Leavell. Thereupon, Smith and Leavell were placed under arrest for the robbery of the drug store.

Other police officers then entered and conducted a room to room search of Leavell's apartment. In one closet, the officers found and confiscated several weapons, including one long-barrelled hand gun which was identified at trial as being similar to the one used in the drug store robbery.

Meanwhile, Mast had arranged for the abandoned vehicle, which had been determined to be owned by Smith, to be towed to a nearby garage. Although the vehicle was not accompanied by any police officers during the towing, shortly after it had been placed in the garage, Officer Greiner arrived and searched the vehicle. Greiner found two hand guns, a brown wig and five brown ladies stockings, all of which were ultimately admitted into evidence over appellants' objections. A levi jacket and a small amount of cash were also discovered in the search.

I.

In determining whether appellants' convictions are supported by sufficient evidence we are mindful that this court neither weighs the evidence nor resolves questions of credibility of witnesses. Rather, we consider only the evidence most favorable to the state together with all reasonable inferences which may be drawn therefrom. If, from that viewpoint, there is substantial evidence of probative value to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Napier v. State (1973), Ind., 298 N.E.2d 427. Further, where a conviction rests in whole or in part upon circumstantial evidence, it will not be disturbed unless this court can state as a matter of law that reasonable persons, whether they be jury or judge, could not form inferences with regard to each material element of the offense so as to ascertain defendants' guilt beyond reasonable doubt. Senst v. State (1974), Ind.App., 319 N.E.2d 663; Defries v. State (1974), Ind.App., 319 N.E.2d 837.

Examining the evidence pertaining to Leavell, we conclude that as a matter of law it is insufficient to support his conviction. The evidence neither places him at the scene of the crime, nor connects him with the abandoned automobile in which the stolen money was discovered. The evidence merely shows that Leavell was flushed from his home by tear gas and that in a subsequent search of his apartment a hand gun similar to one used in the robbery was found. In our opinion, this evidence together with all reasonable inferences logically flowing therefrom are clearly too remote and speculative to permit Levall's conviction to stand.

Regard Smith's conviction we find that the evidence was clearly sufficient to authorize the jury to find that the corpus delecti--that is, that the crime charged had been committed by someone--was established. See Hunt v. State (1939), 216 Ind. 171, 23 N.E.2d 681; State v. Torphy (1940), 217 Ind. 383, 28 N.E.2d 70. Additionally, the discovery in the abandoned automobile of a paper sack bearing the characteristic Hook's insignia, containing $647.00, the amount which had been stolen from the drug store, two hand guns, a brown wig, ladies hosiery, and a levi jacket, within 20 blocks of the drug store which had been robbed and less than one hour after the robbery are sufficient facts, in their cumulative effect, to justify the inference that the abandoned vehicle had been used in the perpetration of the offense charged.

Having concluded that there was sufficient evidence of...